Current U.S. Copyright Law represents an attempt by Congress to balance the rights of creators and copyright proprietors with the rights of copyright users. That is, Congress wanted both to protect those that produce and own copyrighted materials (composers and publishers) and to recognize the needs of those that use and enjoy those materials (listeners, performers, and prominently, music teachers).
The compromise represented by the Law is the result of numerous congressional hearings as well as studies conducted by the U.S. Copyright Office, in connection with which a substantial amount of testimony was heard and numerous comments were received from members of both groups. Of course, debate on the best way to manage the use of creative materials was and is contentious, particularly around the specific ways that educators can properly use copyrighted works without a formal license. It is no surprise that copyright proprietors endeavor to protect the incentive for creative effort, whereas educators wish to incorporate such works in their instruction without over-restrictive regulations or costly permission fees.
Basically, the legislative compromise permits educators, subject to certain limitations and exceptions, to use copyright protected works in the classroom setting while still affording copyright proprietors significant protections against excessive or commercially-damaging unauthorized use. Using the simple ideas put forth here, music educators will be able to better focus on the core job of teaching and to protect themselves and their schools from liability -- the unpleasant possibility of being sued.
In other words, the organizations that have cooperated in preparing this document feel that to make the careful compromise written into the law work day-to-day, two basic factors must be taken into consideration:
- The pedagogical need of music educators for reasonable access to copyrighted material
- The practical need for music creators and their publishers to stay in business
Rights of Copyright Owners
The U.S. Copyright Law is designed to encourage the development of the arts and
sciences by protecting the creative work of the individuals in our society,composers, authors, poets, dramatists, choreographers and others. The law deals first with the exclusive rights belonging to the owner of a copyright (which may be the composer or, if a deal has been cut, a publisher). These are things that only copyright holders can do unless they grant specific permission to others.
These rights, as stated in the law and relating to materials likely to be used by music teachers, are:
- To reproduce the copyrighted work in copies or recordings
- To prepare derivative works (e.g., arrangements) based upon the copyrighted work
- To distribute copies or recordings of the copyrighted work to the public (mostly by sale, but also by rental or other methods)
- To perform the work publicly
- To perform the copyrighted work publicly by means of a digital audio transmission
So the law starts out by saying that the copyright holder has the exclusive right to reproduce, arrange, and perform works. The law, however, proceeds to limit these rights in certain specific instances, including library copying and educational broadcasting. The most important group of limitations for music teachers is embodied in the section of the law that outlines the concept of “educational fair use.” (The actual sections of the law that deal with library and archival copying and fair use are reproduced in their entirety in Appendix A of this document.
Fair use, which applies to all users, allows certain uses that would otherwise be illegal infringements of the copyright owner’s rights. For example, limited quotations of an excerpt from a work in a review or a news report are generally seen as constituting “fair use.” Fair use may also be found when the use is for purposes as criticism, comment, scholarship, research, or teaching. There is, however, no simple black-and-white test. The Fair Use provision of the law sets out four factors a court must consider in determining whether uses for these purposes may be judged “fair”:
- Purpose and character of the use e.g., commercial or educational?)
- Nature of the work, epic poem, song, limerick, novel, opera?)
- Amount and substantiality of the portion use how much is being copied and how important is the copied material to the work?)
- Effect on the potential market for or value of the work is the monetary value of the work hurt by the unauthorized use?)
These four factors are listed in the law itself; in 1967 and again in 1975, legislators asked for help from the field (including the organizations that sponsor this document) to develop guidelines to help teachers and others analyze these factors. Those guidelines appear as Appendix B and Appendix C (on music and on books, respectively). Based on this legislative compromise, the intent of the law seems to be that music educators can do several things, without having secured permission of the copyright owner:
- Make a copy of a lost part in an emergency, if it is replaced with a purchased part in due course
- Make one copy per student of up to 10% of a musical work for class study as long as that 10% does not constitute a performable unit
- Make a single recording of a student performance for study and for the school’s archive
- Make a single recording of aural exercises or tests using copyrighted material
- Make up to three copies to replace a copy that is damaged, deteriorating, lost, stolen from a public library or archive (or if the existing format has become obsolete, and if, after reasonable effort by the library/archive, an unused replacement cannot be obtained at a fair price)
- Make one copy of a short verbal or a graphic work for teacher’s use in preparation for or during a class
The following, however, are expressly prohibited:
- Copying to avoid purchase
- Copying music for any kind of performance (but note the emergency exception above)
- Copying without including a copyright notice
- Copying to create anthologies or compilations
- Reproducing materials designed to be consumable (such as workbooks, standardized tests, and answer sheets)
- Charging students beyond the actual cost involved in making copies as permitted above
Note that a work may be out of print does not mean that permission is given to copy and distribute that work. Music educators sometimes would like to procure a copy or copies of an out-of-print copyrighted work for specific purposes. For that reason, the music publishers’ trade associations have prepared a simple form for use in the procurement of out-of-print works. The form is reproduced as Appendix E.
:
- National Music Publishers’ Association, Inc. (NMPA) at www.nmpa.org
- Music Publishers’ Association of the United States (MPA) at www.mpa.org
- U.S. Copyright Office at www.copyright.gov
The first recording of a work and its distribution in recorded form, as well as any recording of a dramatico-musical work such as a musical comedy, requires the consent of the copyright owner.
The only exception to the exclusive right of the copyright owner to distribute copies is that involved in the compulsory license relative to phonorecords as described above. Note that even here a license is required and must be paid for. The law just simplifies and details the times that permission must be granted and the maximum rates that must apply.
:
- The Face-to-Face Exemption: To qualify for this exemption, the performance must be initiated by instructors or pupils and must occur within the context of the “face-to-face teaching activities” of a nonprofit educational institution, in a classroom or similar place devoted to instruction (e.g., a library, studio or workshop). It should be noted that there is no specific restriction, in this case, on the type or amount of a copyrighted work that may be performed. This exemption is limited, and does not apply to:
- Performances by actors, singers, or instrumentalists brought in from outside the school to put on a program
- Performances, whatever their cultural value or intellectual appeal, that are given for the recreation or entertainment of any part of their audience
- Performances in profit-making institutions such as for-profit dance or music studios
- Performances in an auditorium or stadium during a school assembly, graduation ceremony, class play, or sporting event, where the audience is not confined to the members of a particular class (Only performances “in a classroom or similar place devoted to instruction” fit this provision; performances at shopping malls and the like are certainly not covered)
- The Distance Education Exemption: The law does permit performance or display of a musical work by a transmission (distance education) in an amount comparable to that which is typically displayed in the course of a live classroom session. Because the law places the onus of developing and implementing a copyright policy on the transmitting body or institute (the school system), this really only applies to teachers who work in schools that have developed the technical and legal structures to deal with this issue. For example, storage and dissemination of the work must be tightly controlled, as must the use of audio-visual oar dramatico-musical works. Also, this exemption does not apply to works developed directly for distance learning or for recordings that were made illegally. A checklist to help institutions comply with the distance education exemption appears in Appendix F. At any rate, to come within the distance education exemption, the performance or display must be:
- Made by, at the direction of, or under the actual supervision of an instructor
- An integral part of a class session offered as a regular part of the normal teaching of a public school or an accredited nonprofit educational institution
- Essential to the teaching content of the transmission; and made solely for and, to the extent technologically feasible limited to reception by, students officially enrolled in the course for which the transmission is made
- Music for Worship Exemption: Performance of non-dramatic literary or musical works or of dramatico-musical works of a religious nature, in the course of services at places of worship or at a religious assembly, is permitted.
- School Concert Exemption: School ensembles, students, and teachers, can put on a performance of a non-dramatic literary or musical work at a school concert as long as no money changes hands. That is, nobody can gain any direct or indirect commercial advantage; no fee or compensation can be paid to the performers, promoters or organizers; and no admission charge can be levied. (There is even an exception to this: there can be an admission charge, but all of the proceeds must be used only for educational or charitable purposes.) The performance may not take place if the copyright owner objects in writing seven days before the performance.
Duration of Copyright
The duration of copyright has changed several times as Congress refined compromises over the law. Currently, a teacher can generally presume that a work copyrighted less than 95 years ago is still covered by the law. Here are how the details work:
- Works created after January 1, 1978 will be protected for the life of the composer (author) plus 70 years.
- Copyrights in effect on that date, if renewed, will continue for 95 years from the date copyright was originally secured. Renewal became automatic for all works that first obtained US copyright in 1964 or later, so those works in their initial 28-year period of copyright on January 1, 1978 could have been or now can be renewed for an additional 67 years, while the copyright of works in their renewal term on that date were automatically extended for an additional 19 years, and, if still in copyright on October 28, 1998, again for an additional 20 years, for a total of 39.
Penalties for Infringement
The remedies provided by the law to a copyright owner mean that a music
educator found making illegal copies, or otherwise infringing, could face some very unpleasant consequences:
- Statutory damages of from to ,000 in the simplest cases. If the court finds that the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement” the minimum damages may be reduced. Also, the penalty can be remitted for teachers in public or nonprofit schools who had reasonable grounds for believing that the “fair use” portions of the law applied who wish to use this provision need to understand “fair use” and make the most of the privileges it grants, but they must also abide by its very definite limitations.
- If a court decides that the act of infringement was willful, the damages can go up to ,000 per copyright infringed.
- If a court finds willful infringement for commercial advantage and private financial gain is proved, the infringer can face criminal fines of up to ,000 or five years’ imprisonment, or both.
Appendix A: Essential Sections of the Law
The Fair Use; Library Reproduction; and Exemption of Certain Performances and Displays Sections of the Law
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantially of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord under the conditions specified by this section(1) The reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) The collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) The reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), (1) The copy or phonorecord reproduced is currently in the collections of the library or archives; and
(2) Any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.
(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, (1) The library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) Any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
(d) The rights of reproduction under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if
(1) The copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) The library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, (1) The copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) The library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(f) Nothing in this
(1) Shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;
(2) Excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107:
(3) Shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or
(4) In any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee
(1) Is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group: or
(2) Engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
(h)
(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.
(i) the rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).
Limitations on exclusive rights: Exemption of certain performances and displays
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;
(2) performance of a non-dramatic literary or musical work or display of a work, by or in the course of a transmission, if-
(A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and
(C) the transmission is made primarily for-
(i) reception in classrooms or similar places normally devoted to instruction, or
(ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or
(iii) reception by officers or employees of governmental bodies as a part of their official duties or employment;
(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;
(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if
(A) there is no direct or indirect admission charge; or
(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:
(i) the notice shall be in writing and signed by the copyright owner or such owner's duly authorized agent; and
(ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and
(iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;
Appendix B: Guidelines with Respect to Copyrighted Music Material
The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under section 107 of the 1976 Copyright Act. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the 1976 Copyright Act. There may be instances in which copying that does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.
- Permissible uses:
- Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.
- For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria but in no case more than 10% of the whole work. The number of copies shall not exceed one copy per pupil.
- Printed copies which have been purchased may be edited OR simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.
- A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.
- A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyrights of the music itself and not to any copyright that may exist in the sound recording.)
- Prohibitions:
- Copying to create or replace or substitute for anthologies, compilations or collective works.
- Copying of or from works intended to be “consumable” in the course of study or teaching such as workbooks, exercises, standard tests and answer sheets and like material.
- Copying for the purpose of performance except as in A-1 on previous page.
- Copying for the purpose of substituting for the purchase of music except as in A-1 and 2 above.
- Copying without inclusion of the copyright notice which appears on the printed copy.
Appendix C: Guidelines with Respect to Copyrighted Books and Periodicals
The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of the 1976 Copyright Act. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of [the 1976 Copyright Act]. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.
Guidelines
- Single Copying For Teachers
A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
- A chapter from a book;
- An article from a periodical or newspaper;
- A short story, short essay or short poem, whether or not from a collective work;
- A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.
- Multiple Copies For Classroom Use
Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:
- The copying meets the tests of brevity and spontaneity as defined below; and,
- Meets the cumulative effect test as defined below; and,
- Each copy includes a notice of copyright.
Definitions
Brevity
- Poetry: a. A complete poem if less than 250 words and if printed on not more than two pages, or (b) from a longer poem, an excerpt of not more than 250 words.
- Prose: a. Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. (Each of the numerical limits stated in “i” and “ii” above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)
- Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
- “Special” works: Certain works in poetry, prose or in “poetic prose” which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph “ii” above notwithstanding such “special works” may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.
Spontaneity
- The copying is at the instance and inspiration of the individual teacher, and
- The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
Cumulative Effect
- The copying of the material is for only one course in the school in which the copies are made.
- Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
- There shall not be more than nine instances of such multiple copying for one course during one class term. (The limitations stated in “ii” and “iii” above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.)
- Prohibitions as to A and B above
Notwithstanding any of the above, the following shall be prohibited: Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or produced and used separately.
